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Sept. 15th COVID-19 Update

In recent days, public health authorities and government regulators have issued new COVID-19-related guidance and requirements for providers of long-term/post-acute care (LTPAC) and senior services. These and other developments are described below.

As a reminder, LeadingAge NY continues to convene weekly webinars on Mondays at 11 a.m. to address emerging questions on COVID-19. A recording of our most recent webinar, held on Sept. 14th, is available here. If you have questions for next week’s update, please send them to Ami Schnauber, and be sure to check your email for the access information, or contact Jeff Diamond.

Cross-Sector Updates

USDOL Revises Regulations on COVID-19 Employee Leave

Late last week, the U.S. Department of Labor (USDOL) announced issuance of revised regulations reinterpreting key provisions of the Emergency Paid Sick Leave Act (EPSLA) and the Emergency Family and Medical Leave Expansion Act (EFMLEA). The new regulations will take effect Sept. 16th when they are published in the Federal Register. Of greatest relevance to LeadingAge NY members is the new definition of “health care provider,” which will expand eligibility for EPSLA and EFMLEA leave to non-direct care employees. Click here for more information.

Providers Given Additional Time for EO #38 Filings

The State’s Executive Order (EO) #38 webpage indicates that the deadline for all providers to file disclosure statements on executive compensation and administrative costs has been extended to Sept. 29th. At the top of the webpage, it states:

“NOTICE: Due to the COVID-19 pandemic, the Governor’s Office has found justifiable cause to grant all required disclosure statement filers an additional three months within which to submit their disclosure otherwise due by June 29th of this year. Disclosures must now be completed online on or before Tuesday, September 29, 2020.”

Ordinarily, nursing homes and certified home health agencies (CHHAs) would have been required to submit their EO #38 disclosures and any requested waivers from the “Hard Cap” on executive compensation or the Administrative Expense Cap by the date their Medicaid cost reports are due. The 2019 nursing home and CHHA cost reports are due Sept. 15, 2020 and Oct. 31, 2020, respectively. For assisted living programs (ALPs), adult care facilities (ACFs), and licensed home care services agencies (LHCSAs), the deadline for submission of disclosures/waivers is typically 180 days after the end of the calendar year (or provider’s fiscal year), most often by the end of June.

In determining whether a provider needs to request a waiver of the executive compensation limitation, members should be aware that in October 2018, the New York State Court of Appeals issued an opinion in LeadingAge New York et al v. Shah which upheld the Hard Cap and Administrative Expense Cap while striking down the “Soft Cap.” While the Hard Cap applies exclusively to the use of State funds and State-authorized payments to pay executive compensation, the Soft Cap had prohibited executive compensation in excess of $199,000 from all sources of revenue unless the compensation was within the 75th percentile of comparable providers and had been approved by the provider’s governing board, including at least two independent directors or voting members. The Department of Health (DOH) proposed regulatory changes in September 2019 that would have conformed its regulations to the court’s ruling, but these have not yet been adopted. Nonetheless, the court’s ruling is legally binding, as explained in a Hinman Straub summary.

New PPE Distribution Process for NYC Health Care Providers

The New York City Department of Health and Mental Hygiene (NYC DOHMH), Office of Emergency Preparedness and Response (OEPR), has announced news regarding its work to develop an emergency stockpile of personal protective equipment (PPE) in the event that there is a COVID-19 resurgence. To streamline the process of providing PPE to frontline health care workers serving NYC patients, they are partnering with Medline to support the request and delivery of PPE from the stockpile. Click here for more information.

Travel Advisory States

LeadingAge NY has been tracking the COVID-19 Travel Advisory requiring people to quarantine if traveling to New York from certain states, with certain conditional exceptions for essential workers. On Sept. 15th, the Governor announced that California, Hawaii, Maryland, Minnesota, Nevada, Ohio, and the Northern Mariana Islands have been removed from the list, while Puerto Rico has been added. Click here for more information and an archived list of states as they have been added or removed.

LeadingAge NY has received questions regarding residents, at end of life, having loved ones from states on the Travel Advisory wanting to visit. Click here for information on how to request an exemption for certain circumstances.

Nursing Home Updates

New DOH Nursing Home Visitation Guidance Reduces COVID-19-Free Lookback to 14 Days

On Sept. 15th, DOH released new nursing home visitation guidance, effective Sept. 17th, that allows facilities to welcome visitors if they have no "new nursing home onset of COVID-19 in the nursing home" for 14 days. This represents a significant reduction of the 28-day waiting period previously in effect. Notably, the new DOH guidance also uses the "nursing home onset" standard introduced by the Centers for Medicare and Medicaid Services (CMS) in its reopening guidance. Another major change in the guidance is a new requirement that all visitors present a negative COVID-19 test result within the last seven days. Click here for more information.

Details Regarding New Visitation Guidance for Pediatric SNFs

LeadingAge NY is pleased to report that DOH has updated the visitation guidance for pediatric skilled nursing facilities (SNFs). Click here for more information, including analysis from LeadingAge NY counsel Hinman Straub.

Nursing Home Pandemic Emergency Plan PPE Storage Requirements

On Sept. 15th, DOH issued Dear Administrator Letter (DAL) NH 20-12 clarifying the PPE storage requirements under the nursing home Pandemic Emergency Plan (PEP) statute. Questions had been raised as to whether the PPE could be stored offsite. Click here for more information.

ACF/Assisted Living Updates

New ACF Visitation Guidance and Important Clarifications

LeadingAge NY is extremely pleased to report that DOH issued guidance on Sept. 9th announcing a change to requirements for visitation in ACFs. Click here for more information, including an important clarification regarding the visitation criteria and a note about indoor visitation.

Assisted Living Provider Relief Funding Application Still Open!

If you missed the Sept. 13th deadline to apply for Provider Relief Phase 2 General Distribution funding, you are in luck. LeadingAge advocated for more time, since assisted living providers had only 12 days to apply, much less time than other providers. It is being reported that applications will be accepted from assisted living providers until Sept. 21st; however, the U.S. Department of Health and Human Services (HHS) website is still being updated. As a reminder, this opportunity is for ACF and assisted living providers that have not yet received 2 percent of annual patient revenue. Sharing a Taxpayer Identification Number (TIN) is no longer an impediment. If your ALP did not yet receive 2 percent of annual resident revenue, you should use this opportunity to apply. We encourage members to review these criteria to ensure that they have accessed all of the federal funding they are eligible for. Click here for more information on the funding opportunity, as well as the link to the application and other helpful resources. Please let us know if you encounter any difficulty.

Affordable Housing Updates

CDC Releases COVID-19 Recommendations for Multifamily Housing Providers

The Centers for Disease Control and Prevention (CDC) has released considerations and recommendations for operators of multifamily housing communities during the COVID-19 emergency. Building on the CDC’s COVID-19 guidance for other congregate settings, including retirement homes and shared housing, the new considerations are tailored specifically to multifamily housing providers serving sensitive individuals. Click here for more information from LeadingAge National.